HomeMy WebLinkAbout2005-3 Civil
STEVEN M. KOWALKOWSKI,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
FRED RECUPERO,
DEFENDANT
05-0003 CIVIL TERM
IN RE: PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., March 24, 2005:--
Plaintiff, Steven M. Kowalkowski, filed a complaint against defendant, Fred
Recupero. Plaintiff avers that he and defendant entered into a verbal contract for
$932.90, for defendant to perform specialized machining work on cylinder heads of a
1968 Mustang. Plaintiff delivered the cylinder heads to defendant and paid him the
$932.90. The oral agreement was amended to add the installation of hardened seats
for $100 which plaintiff paid to defendant. Defendant undertook the work and damaged
the cylinder heads. Plaintiff seeks damages from defendant in the amount of $2,058.78
"together with interest, costs of suit and reasonable counsel fees." Defendant filed a
preliminary objection to plaintiff's complaint averring:
Plaintiff's Complaint fails to conform to Law in that Plaintiff requests the
award of reasonable counsel fees in a contract action, which is
contrary to law.
WHEREFORE, Defendant respectfully request that Plaintiff's complaint
be dismissed. (Emphasis added.)
05-0003 CIVIL TERM
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05-0003 CIVIL TERM
There can be no recovery for attorney fees absent an express statutory
authorization, a clear agreement by the parties, or some other established exception.
Merlino v. Delaware County, 728 A.2d 949 (Pa. 1999). In Hudock v. Donegal Mutual
Insurance Company, 438 Pa. 272 (1969), the Supreme Court of Pennsylvania
concluded that preliminary objections in the nature of a demurrer are an inappropriate
means by which to challenge the legality of damages sought in a complaint. A
preliminary objection in the nature of the motion to strike off impertinent matter is the
appropriate means through which to challenge an erroneous prayer for damages.
In the case sub judice, defendant has not filed a preliminary objection to strike
plaintiff's claim for attorney fees. Rather, his objection seeks to have the complaint
dismissed (a demurrer). Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this
day of March, 2005, the preliminary objection of
defendant to plaintiff's complaint, IS DISMISSED.
By the Court,
Edgar B. Bayley, J.
Dennis J. Shatto, Esquire
For Plaintiff
Michael J. Pykosh, Esquire
F or Defendant
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05-0003 CIVIL TERM
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STEVEN M. KOWALKOWSKI,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
FRED RECUPERO,
DEFENDANT
05-0003 CIVIL TERM
IN RE: PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT
BEFORE BAYLEY, J.
ORDER OF COURT
AND NOW, this
day of March, 2005, the preliminary objection of
defendant to plaintiff's complaint, IS DISMISSED.
By the Court,
Edgar B. Bayley, J.
Dennis J. Shatto, Esquire
For Plaintiff
Michael J. Pykosh, Esquire
F or Defendant
:sal